Badri Narain Verma and Another vs The State of Bihar and Others

Radha Mohan Prasad, J.—The Petitioners in this application have prayed for quashing of the order, as contained in Annexure-6. to the extent it relates to Respondent Nos. 9 to 20, whereby they along with Ors. have been promoted/appointed in the B.A. trained pay scale and further for issuance of a writ in the nature of writ of mandamus commanding Respondent Nos. 1 to 8 to promote the Petitioners in B.A. Trained pay scale. The Petitioners have also sought for a declaration that Respondents Nos. 9 to 20 are junior to Petitioner No. 1 and Respondent Nos. 18, 19 and 20 are junior to Petitioner No. 2 besides other reliefs.

The short facts for deciding this case are that undisputedly the Petitioners as well as Respondent Nos. 9 to 20 are all B.A. trained. Petitioner No. 1 was granted I.A. trained pay scale on 13.1.1974 and Petitioner No. 2 on 1.4.1980 whereas Respondent Nos. 9 and 10 were granted I.A. trained pay scale on 14/9/1977 and Respondent Nos. 11 to 19 were granted said pay scale on 1.4.1980 and Respondent No. 20 on 15.1.1975. The aforementioned Respondents acquired higher qualification i. e., B.A. in the years 1980, 1979,. 1976, 1980, 1965, 1982, 1985, 1976, 1980, 1982 and 1978 respectively whereas Petitioners Nos. 1 and 2 acquired the same in the year 1984.

Dr. Sadanand Jha, learned Counsel appearing for the Petitioners, contended that the only question to be decided in the instant case is as to whether the seniority will be determined with reference to the respective dates of acquiring higher qualification, namely, B.A. or with reference to the date of initial appointment in the grade from which the cases for promotion are to be considered of persons who acquired higher qualification before such consideration. According to him, the Petitioners having acquired the said higher qualification i.e., B.A. though after Respondent Nos. 9 to 20 but before they had been promoted in the A. trained pay scale, their seniority would stand restored and will be determined as against those teachers with reference to the date of initial appointment in the grade.

Dr. Jha has submitted that there is no statutory rule in this regard except the Government circular issued in exercise of the power u/s 8 of the Bihar Non-Government Elementary School (Control and Take Over) Ordinance, 1976 as contained in Education Department letter No. G/M 7-074/76 E-4557 dated 15th December, 1976 at page 645 of Volume I of the Bihar Elementary Education Rules and Regulations, which has been reiterated from time to time in different Government circulars as contained in Volume II of the Compendium of the Bihar Elementary Education Rules and Regulation (Supplementary Edition). Dr. Jha has referred to Sub-clauses (Gha) and (Ja) of Clause 3 of item (iii) and Clause 6 which deal with ''Promotion''. Sub-Clause (Gha) provides that the promotion in the graduate trained pay scale will be given to graduate trained teachers posted in the Intermediate trained pay scale on the basis of their seniority determined with reference to the date of initial appointment. Sub-clause (Ja) provides that every year the seniority list of all eligible teachers until 31st December shall be prepared latest by the end of February of the next year and from this list, after its approval promotion to the existing vacancies will be given in that year i.e., from 1st April to 31st March. In Sub-clause (6) it is stated that seniority list of the respective years shall be prepared by the month of February next year and approval of the same shall be obtained by the month of March. In Sub-clause (7) it has been stated that the promotion to the teachers from the approved list shall be given according to the respective seniority from 1st April to the month of March next year. The aforementioned relevant subclauses are quoted hereunder:

�3� �iii� �?k� bUVjehfM,V izf''kf{kr osrueku esa inLFk Lukrd izf''kf{kr f''k{kdksa dks mudh izFke fu;qfDr frfFk ds ojh;rk�e esa Lukrd izf''kf{kr osrueku dh miyC/k fjfDr;ksa ij izksUufr nh tk;sxh A

�t� izfro"kZ 31 fnlEcj rd ;ksX;rk izkIr f''k{kdksa dh ojh;rk lwph nwljs o"kZ Qjojh ds vUr rd rS;kj dh tk,xh vkSj blh lwph ls] vuqeksnu ds ckn ml o"kZ esa �1 vizSy ls 31 ekpZ rd� miyC/k fjfDr;ksa ij ojh;rk �e esa izksUufr nh tk,xh A og lwph dsoy mlh fo�kh; o"kZ rd izHkkoh jgsxh A bl izdkj izR;sd o"kZ 31 fnlEcj rd ;ksX;rk izkIr f''k{kdksa dh ojh;rk lwph cukbZ tk,xh vkSj ml lwph ls mlds ckn ds nwljs o"kZ esa miyC/k fjfDr;ksa ij ojh;rk �e esa izksufr nh tk,xh A

�6� ojh;rk lwph ftl o"kZ dh cukbZ tk,xh] ml o"kZ dh ojh;rk lwph nwljs o"kZ ds Qjojh ekg rd rS;kj dj yh tk,xh vkSj ekpZ ekg rd lfefr dk vuqeksnu izkIr dj fy;k tk,xk A

�7� vuqeksfnr lwph ls ojh;rk �e esa f''k{kdksa dks 1 vizSy ls izksUufr nwljs o"kZ ds ekpZ ekg rd nh tk,xh A

In the year 1981 certain amendments in the above circular was brought in vide Education Department Notification No. S/Ba 3-017- 15/80 Shi 2060 Patna dated the 15th September, 1981. According to the said amendment, the State Government decided to categorise the respective grades for the purpose of appointment and promotion and; further, laid down the minimum educational qualification and training required for the same. Sub-clause (Gha) of Clause 3 of the said Government circular provides that the promotion to Grade 3 will be given from the annual list of employed. Graduate trained teachers in Grade 4 prepared on the basis of seniority with reference to their dates of promotion in Grade 4 besides other avenues mentioned therein. The aforesaid relevant Sub-clause (Gha) is quoted hereunder for ready reference:

�3� �?k� xszM 3 esa izksUufr & xzsM 4 esa lsokjr izf''kf{kr Lukrd f''kf{kdksa dks xszM 4 esa mudh izksUufr frfFk dh ojh;rk ds vk/kkj ij cukbZ xbZ okf"kZd lwph ls xzsM 3 esa izksUufr nh tk,xh A ,slh izksUufr nsus ds ckn tks in fjDr jg tk,xh A ,slh izksUufr nsus ds ckn tks ij fjDr jg tk,axs muds le{k xszM 5 ds osrueku esa dk;Zjr izf''kf{kr Lukrd ;ksX;rk okys f''k{kdksa dks ojh;rkuqlkj xzsM 5 esa izksUufr frfFk ds vk/kkj ij lh/kh fu;qfDr dh tk,xh A fQj Hkh ;fn xzsM 3 ds lHkh in u Hkjs tk ldssa rks xzsM 6 esa dk;Zjr izf''kf{kr Lukrd f''k{kdksa dh Hkh mudh izFke fu;qfDr dh frfFk dh ojh;rk ds vk/kkj ij xszM 3 ds osrueku esa lh/kh fu;qfDr dh tk ldsxh A ,slh izksUufr @ lh/kh fu;qfDr mUgha f''k{kdksa dh gksxh ftuds ikl fo"k; lewgkuqlkj l`ftr in ij fu;qfDr @ izkUufr dh vgZrk gks A ,sls f''k{kdksa dh lh/kh fu;qfDr ds QyLo:i izksUufrt; osru fu/kkZj.k dk ykHk ugha fn;k tk,xk A

;fn fQj Hkh fdlh fo"k; ds fy, xzsM 5 vkSj 3 ds osrueku esa l`ftr lHkh in fofgr ;ksX;rk ds dk;Zjr f''k{kdksa dh izksUufr @ lh/khfu;qfDr ls u Hkjs rks foKkiu }kjk ckgjh mEehnokjksa ls vkosnu & i= vkeaf=r dj ;ksX;rk �ekuqlkj lh/kh fu;qfDr dh tk,xh A

Notices were issued to Respondent Nos. 9 to 20. A Vakalatnama has been filed on behalf of Respondent Nos. 4, 11, 14 and 16 to 20 through Sri Abdul Moyeed Ahmad. Advocate but no counter affidavit has been filed on their behalf nor the said learned Counsel has appeared to contest on their behalf.

A counter affidavit has been filed on behalf of Respondent Nos. 1 to 8. In this counter affidavit, the facts have not been disputed. However, it appears that in the said counter affidavit the stand of the Respondent is that the Petitioners acquired the higher qualification i. e., B.A. later than Respondent Nos. 9 to 20 hence Respondent Nos. 9 to 20 are senior to Petitioner Nos. 1 and 2.

Mr. Devendra Kumar Sinha, learned Standing Counsel No. IV appearing for Respondent Nos. 1 to 8 in support of the aforesaid stand of Respondent Nos. 1 to 8 could not point out any rule or Government circular in that regard. He, however, submitted that once a person in the gradation list has been given the pay admissible to a trained graduate, he will not be divested of that right by subsequent events. That is to say, even if a person with a greater length of service becomes trained graduate at a time when a person with lesser length of service receiving the salary admissible to a trained graduate, the latter will not be divested of the pay which is being given to him. In my opinion, there is substance in this submission of Mr. Sinha. However, in the instant case, this question will not arise as the Petitioners acquired the higher qualification even before the impugned order giving promotion to Respondent Nos. 9 to 20 in the B. A. trained pay scale was issued.

The above mentioned Government Circular of 1976 came up for consideration before a Division Bench of this Court in C.W.J.C. No. 2205 of 1977 (disposed of on 12th September, 1979). The Bench after considering the import of 1976 Circular, in detail, held as follows:

A person not included in the list of trained graduates may subsequently acquire the required academic proficiency in the subsequent year and by dint of greater length of service, he would rank senior to some, may be to all those in the list of trained teachers from earlier years. Senior most in the gradation list of a particular year would be conferred the salary admissible to trained graduates if there be a vacancy in that year. Once a person in the gradation list has been given the pay admissible to a trained graduate, he will not be divested of that right by subsequent events. That is to say, even if a person with a greater length of service becomes trained graduate at a time when a person with lesser length of service who is receiving the salary admissible to a trained graduate, the latter will not be divested of the pay which is being given to him. The gradation list is a sort of waiting list arranged in order of seniority. In that waiting list the teachers with greatest length of service with the requisite qualification of being a trained graduate must rank the highest, no matter when he passed the Intermediate of Art examination or when he passed the Bachelor of Arts or Bachelor of Education examination. In my view, that is the import of promotion rules as enshrined in Government Circular No. 4557 dated 15/12/76

In the facts and circumstances of the present case, I hold that the Petitioners'' seniority stood restored after they acquired the higher qualification and came at par with Respondents Nos. 9 to 20 and they are entitled to claim for consideration of their cases for promotion before the said Respondents.

Accordingly, I allow the writ petition and direct Respondent Nos. 1 to 8 to give consequential promotions to the Petitioners with effect from the dates when their junior from amongst Respondents Nos. 9 to 20 have been promoted, if there is nothing adverse against them, but, in the circumstances, there would be no order as to costs.